118 STAT. 1778 PUBLIC LAW 108–374—OCT. 27, 2004 devise any trust or restricted interest by way of a valid will in accordance with subsection (b). ‘‘(3) RIGHT OF REPRESENTATION.—If, under this subsection, all or any part of the estate of a decedent is to pass to children of a deceased child by right of representation, that part is to be divided into as many equal shares as there are living children of the decedent and pre deceased children who left issue who survive the decedent. Each living child of the decedent, if any, shall receive 1 share, and the share of each pre deceased child shall be divided equally among the pre deceased child’s children. ‘‘(4) SPECIAL RULE RELATING TO SURVIVAL.—In the case of intestate succession under this subsection, if an individual fails to survive the decedent by at least 120 hours, as estab lished by clear and convincing evidence— ‘‘(A) the individual shall be deemed to have predeceased the decedent for the purpose of intestate succession; and ‘‘(B) the heirs of the decedent shall be determined in accordance with this section. ‘‘(5) STATUS OF INHERITED INTERESTS.—Except as provided in paragraphs (2) (A) and (D) regarding the life estate of a surviving spouse, a trust or restricted interest in land or trust personalty that descends under the provisions of this subsection shall vest in the heir in the same trust or restricted status as such interest was held immediately prior to the decedent’s death.’’. (b) TESTAMENTARY DISPOSITION.—Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206) is amended by striking subsection (b) and inserting the following: ‘‘(b) TESTAMENTARY DISPOSITION.— ‘‘(1) GENERAL DEVISE OF AN INTEREST IN TRUST OR RESTRICTED LAND.— ‘‘(A) IN GENERAL.—Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, or a tribal probate code approved by the Secretary in accordance with section 206, the owner of a trust or restricted interest in land may devise such interest to— ‘‘(i) any lineal descendant of the testator; ‘‘(ii) any person who owns a preexisting undivided trust or restricted interest in the same parcel of land; ‘‘(iii) the Indian tribe with jurisdiction over the interest in land; or ‘‘(iv) any Indian; in trust or restricted status. ‘‘(B) RULES OF INTERPRETATION.—Any devise of a trust or restricted interest in land pursuant to subparagraph (A) to an Indian or the Indian tribe with jurisdiction over the interest shall be deemed to be a devise of the interest in trust or restricted status. Any devise of a trust or restricted interest in land to a person who is only eligible to be a devisee under clause (i) or (ii) of subparagraph (A) shall be presumed to be a devise of the interest in trust or restricted status unless language in such devise clearly evidences an intent on the part of the testator that the interest is to pass as a life estate or fee interest in accordance with paragraph (2)(A).
�
